NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DARROL DEAN CLAYBORN, Appellant.

No. 1 CA-CR 17-0262

Appeal from the Superior Court in Maricopa County

No. CR2014-002137-001

The Honorable Jay R. Adleman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jason Lewis

Counsel for Appellee

Bain & Lauritano, Glendale

By Sheri M. Lauritano

Counsel for Appellant

FILED 3-22-2018
STATE v. CLAYBORN

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Darrol Clayborn appeals his convictions and sentences for 

multiple counts of aggravated assault. He argues the trial court erred by not 

allowing the defense to elicit testimony from a witness who had indicated 

he would invoke his Fifth Amendment privilege against self-incrimination. 

For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND1

¶2 On an evening in October 2013, E.A. (“E. Weezy”) threw a 

party at his family’s apartment. His parents were out of town, and between

50 to 70 of his friends showed up throughout the night. Many of the 

partygoers were drinking alcohol. Clayborn and E. Weezy did not know 

one another at the time, but Clayborn came to the party with a mutual 

friend named Peanut. 

¶3 In the early morning hours, after most people had left the 

party, an argument broke out between Clayborn and E. Weezy. E. Weezy 

and his older brother both asked Clayborn to leave the apartment, and 

Clayborn went toward the front door with Peanut. Then, instead of leaving, 

Clayborn turned back around, took a gun out from around his waist, and 

started shooting. E. Weezy and several other partygoers were hit, including 

A.G. (“Smash”), who was shot in the stomach. Multiple witnesses recalled 

hearing continuous gunfire, and at least one witness saw Smash shoot a gun 

at Clayborn after he ran out of the apartment. Clayborn himself was also 

shot in the leg. 

¶4 Clayborn was indicted on four counts of attempted second 

degree murder, all class 2 dangerous felonies, twelve counts of aggravated 

assault, all class 3 dangerous felonies, and one count of misconduct 

 

1 “We view the evidence and all reasonable inferences therefrom in 

the light most favorable to sustaining the jury’s verdicts.” State v. Miles, 211 

Ariz. 475, 476, ¶ 2 (App. 2005).
STATE v. CLAYBORN

Decision of the Court

3

involving weapons, a class 4 dangerous felony. At trial, Clayborn presented 

a claim of self-defense and testified that he only drew his gun after he saw 

Smash draw his first.

¶5 During trial, the State informed the court that Smash had 

indicated he would refuse to testify. Outside the presence of the jury, the 

State questioned Smash about how he would answer any questions about 

the evening of the incident. Smash responded:

Well, how I’m going to answer is I was intoxicated, I was on 

drugs, I don’t remember nothing. Like I said at the hospital, 

the officer came to see me, I told him the same thing. Prior to 

that, a week after that, I was on . . . Xanax bars, Xanax, and I 

don’t remember nothing that happened that month. I was on 

drugs. And from there, that’s it. I plead the Fifth. I want an 

attorney. I’m not going to say nothing else. That’s all I’m 

going to say. 

¶6 Toward the end of the State’s case-in-chief, the court 

addressed the issue of Smash testifying. His counsel informed the court that 

his client was invoking his Fifth Amendment rights, and that even if given 

full immunity by the State, Smash would agree to be sworn in but refuse to 

answer any questions. Clayborn’s counsel asked that he be required to 

invoke his Fifth Amendment right in front of the jury. The court heard

arguments from both parties but ultimately reasoned:

On the record we made . . . it’s largely unchallenged that it’s 

a valid invocation . . . between the discussion of illegal drug 

use, guns, any impeachment with prior inconsistent 

statements, or impeachment from other witness’ statements, 

that there’s sufficient reason for any of us to believe that 

[Smash] could potentially, by testifying, incriminate himself 

as to any number of things, not the least of which would 

include the crimes for which Mr. Clayborn is currently on 

trial.

So assuming . . . there is a valid invocation and there’s never 

really been any challenge to that, part two turns to whether 

there was a valid purpose served by requiring the invocation 

to take place in front of the jury. 

. . . 
STATE v. CLAYBORN

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I just don’t know that there’s any material evidence that could 

be garnered from having him testify simply to invoke because

the only thing it would effectively do is cause the jury to guess 

or speculate that his invocation had to do with the offenses in 

this case . . . . I don’t believe there’s a purpose to having him 

invoke in the presence of the jury . . . . 

Accordingly, Smash did not appear before the jury as a witness.

¶7 The court granted Clayborn’s motion for a directed verdict on 

two of the counts of aggravated assault. The jury acquitted Clayborn of the 

four counts of attempted second degree murder, but found Clayborn guilty 

of the remaining ten counts of aggravated assault and found three or four 

aggravating circumstances associated with each count. Clayborn later pled 

guilty to the single count of misconduct involving weapons. The court 

sentenced Clayborn to two consecutive terms of 9.5 years’ imprisonment.

2

DISCUSSION

¶8 Clayborn argues the trial court abused its discretion by 

denying his motion to compel Smash to testify. First, Clayborn contends

that Smash’s invocation of the Fifth Amendment was not valid; second, 

Clayborn contends that even if his invocation was valid, Clayborn should 

have been allowed to question Smash to compel his invocation of the Fifth 

Amendment in front of the jury. “A trial court’s decision whether to allow 

a party to call a witness before the jury who will assert his Fifth Amendment 

privilege is reviewed for an abuse of discretion.” State v. Harrod, 218 Ariz. 

268, 275, ¶ 19 (2008).

¶9 Defendants have a Sixth Amendment right to “offer the 

testimony of witnesses, and to compel their attendance, if necessary, in 

order to present a defense.” Id. at ¶ 20 (quoting Washington v. Texas, 288 U.S. 

14, 19 (1967)). When a witness asserts a Fifth Amendment right against selfincrimination, however, “the trial court must balance the interests of the 

defendant with those of the witness.” State v. Rosas-Hernandez, 202 Ariz. 212, 

216, ¶ 10 (App. 2002) (citation omitted). If the witness validly invokes the 

Fifth Amendment privilege by “showing a reasonable ground to apprehend 

danger to [himself] from his being compelled to answer, the defendant’s 

right to compulsory process must yield to the witness’s privilege not to 

incriminate himself.” Id. at 216, ¶ 10 (citations omitted); see also State v. 

 

2 This sentence was also consecutive to his sentence in 

CR2013-433944-001.
STATE v. CLAYBORN

Decision of the Court

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Martinez, 218 Ariz. 421, 428, ¶ 27 (2008) (“[W]hen a witness has continued 

reason to fear prosecution, the defendant’s Sixth Amendment right to 

compel that witness’s testimony may be properly limited.” (citations 

omitted)). “There is no Sixth Amendment right to compel a witness to 

testify if the facts support that the witness has properly claimed the Fifth 

Amendment privilege.” Rosas-Hernandez, 202 Ariz. at 216, ¶ 10 (citations 

omitted).

¶10 The trial court may excuse a witness only “when the trial 

judge has extensive knowledge of the case and rules that the Fifth 

Amendment would be properly invoked in response to all relevant 

questions that the party calling the witness plans on asking.” Harrod, 218 

Ariz. at 276, ¶ 21 (citation omitted). “The witness must provide the court 

with a factual predicate from which the court can evaluate the claim of 

privilege,” but the court need not “personally question the witness if it can 

gain the necessary information by other means.” Rosas-Hernandez, 202 Ariz. 

at 217, ¶ 17 (citations omitted).

¶11 Clayborn argues first that “the trial court did not go deeper 

into what areas the witness was facing potential incrimination” and it was 

therefore “premature to allow him to refuse to testify,” as “[n]o showing 

was made on the record as to any incrimination that could occur.” The trial 

court, however, had already heard almost the entirety of the State’s case by 

the time it made the decision not to force Smash to testify, which included 

the testimony of seven partygoers and four responding police officers. One 

police officer testified that, through their investigations, the police 

ascertained there were “two separate shooting incidents,” but had so far 

been unable to determine the identity of the second shooter. The officer 

testified he had never heard anyone “say[] anything definitively” about the 

identity of the second shooter until hearing the testimony of the other 

witnesses in court. The officer also testified that it was possible—though 

not probable—that Smash reached for his gun first, and Clayborn saw this 

and managed to draw and shoot his own gun more quickly. 

¶12 Not only did the trial court already have extensive knowledge 

of the case, but given the possibility that Smash’s testimony may have led 

to self-incrimination for the “second shooting,” the court had evidence to 

conclude that Smash had a factual predicate for invoking the Fifth 

Amendment. See id. at 217, ¶ 17. Furthermore, Clayborn did not object at 

trial to the validity of Smash’s invocation of his Fifth Amendment right nor 

ask the court to “go deeper into what areas the witness was facing potential 

incrimination.” As the trial court noted, supra ¶ 6, “on the record we made, 

. . . it’s largely unchallenged that it’s a valid invocation.” Rather, Clayborn
STATE v. CLAYBORN

Decision of the Court

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does so for the first time here and has therefore waived that argument on 

appeal. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13 (App. 

2000) (“[W]e generally do not consider issues, even constitutional issues, 

raised for the first time on appeal.”).

¶13 Next, Clayborn argues that—even if there was a proper 

showing that Smash’s testimony would be self-incriminating—he was 

required to invoke the Fifth Amendment’s protection in front of the jury. It 

is, however, “well settled that in criminal cases the jury is not entitled to 

draw any inferences from the decision of a witness to exercise his Fifth 

Amendment privilege.” State v. McDaniel, 136 Ariz. 188, 194 (1983),

abrogated on other grounds by State v. Walton, 159 Ariz. 571 (App. 1989)

(citations omitted); see also State v. Corrales, 138 Ariz. 583, 588 (1983) (“The 

decision to permit counsel to call a witness who has indicated he or she will

refuse to testify is ordinarily discretionary with the trial court, which must 

determine whether the interest of the person calling the witness outweighs 

the possible prejudice resulting from the inferences the jury may draw from 

the witness’ exercise of the privilege.” (citations omitted)). 

¶14 Here, we agree with the trial court. There was no material 

evidence to be garnered from requiring Smash to invoke the Fifth 

Amendment in front of the jury. The only discernible purpose of such a 

requirement would be to create the prejudicial impression that Smash was 

invoking the Fifth Amendment because he was himself somehow

implicated in wrongdoing—an inference that the jury was not entitled to 

draw. Therefore, the trial court did not abuse its discretion in not allowing 

the defense to call Smash as a witness only to invoke the Fifth Amendment 

in front of the jury.

CONCLUSION

¶15 For the foregoing reasons, we affirm Clayborn’s convictions 

and sentences.